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Election Litigation: Election Dates

Consent Litigation Over Section 5 PreclearanceWalker v. Cunningham (Lisa Godbey Wood, S.D. Ga. 2:12-cv-152)
After the Justice Department denied preclearance for county district lines already used in a July 2012 primary election, the incumbents and the county engaged in consent litigation to obtain new district lines from the federal court. A three-judge court enjoined use of the election results. Enlisting the cooperation of the state’s reapportionment office, the court drew new district lines, which were used for a special election to be held in May 2013.Topics: Section 5 preclearance; three-judge court; enjoining elections; intervention; primary election.

Election Day on the Last Day of PassoverHerzfeld v. District of Columbia Board of Elections and Ethics (Emmet G. Sullivan, D.D.C. 1:11-cv-721)
A rabbi filed a federal complaint when he realized that a special election to fill municipal vacancies was going to be held on the last day of Passover, a day when he could not vote until after the polls would be closed. The district judge scolded the board of elections for not seeking a court order allowing them to adjust the statutorily-mandated special election date, but the judge denied the plaintiff immediate injunctive relief, because the rabbi had early and absentee voting alternatives. The statute was subsequently amended by an act of Congress.Topics: Polling hours; intervention; absentee ballots.

Preclearance Required for a Special Election Schedule Ordered by a State CourtLULAC of Texas v. Ramon (Alia Moses Ludlum, Jerry E. Smith, and Xavier Rodriguez, W.D. Tex. 2:10-cv-58)
A three-judge district court enjoined a special election set by a state court for lack of preclearance pursuant to section 5 of the Voting Rights Act. Once an uncontested schedule had received preclearance, the district court dissolved the injunction.Topics: Section 5 preclearance; three-judge court; enjoining elections; matters for state courts; primary election.

Preclearance for a Special ElectionBuell v. Monterey County (Jeremy Fogel, N.D. Cal. 5:10-cv-1952)
A federal complaint alleged that polling place consolidations and the date of the election had not been precleared for a special election to fill a vacancy in the state senate, as required by section 5 of the Voting Rights Act for a county overlapping with the senate district. By the time a three-judge court met to hear the case, the special election had been precleared.Topics: Poll locations; section 5 preclearance; three-judge court; enjoining elections; intervention.

Promptness of a Special Election to Fill a Congressional VacancyFox v. Paterson (David G. Larimer, W.D.N.Y. 6:10-cv-6240) and Rossito-Canty v. Cuomo (Jack B. Weinstein, E.D.N.Y. 1:15-cv-568)
A 2010 federal lawsuit sought an injunction requiring a prompt special election to fill a congressional vacancy. After the complaint was filed, the governor decided to combine the special election with the general election occurring in six months. The district judge determined that the Constitution did not require a special election more prompt than that. A 2015 case filed in another district within the same state concerned a vacancy occurring much more in advance of the regular general election, and the district judge ordered the governor to promptly set a special election date.Topic: Enjoining elections.

Rushed Election to Fill a VacancyButler v. City of Columbia (Cameron McGowan Currie, D.S.C. 3:10-cv-794)
When a city council member resigned, the city had to decide whether to follow the normal schedule for a replacement election or to add the replacement election to an earlier city election already scheduled. The state’s supreme court determined that the replacement election should be on the earlier date. A retired law professor filed a pro se complaint claiming that the early election had not been precleared pursuant to section 5 of the Voting Rights Act. A three-judge court enjoined the early election because it had not been precleared.Topics: Section 5 preclearance; three-judge court; enjoining elections; pro se party; intervention.

Approving a Compressed Special ElectionChicago Board of Election Commissioners v. Illinois State Board of Elections (Samuel Der-Yeghiayan, N.D. Ill. 1:09-cv-82)
Election officials sought the blessing of a federal court to compress election deadlines, including those concerning overseas voters, to accommodate a special election set for a vacancy in the U.S. House of Representatives. The district judge approved an election schedule proposed by the parties.Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); absentee ballots; intervention.

Section 5 Preclearance and Holding a Special Election on the Same Day as a General ElectionBarron v. New York City Board of Elections (Raymond J. Dearie, E.D.N.Y. 1:08-cv-3839)
A federal complaint sought a court ordered special election at the time of the general election to fill out the last two months of a vacancy in the state’s assembly. The complaint included a claim that failure to fill the final two months had not been precleared pursuant to section 5 of the Voting Rights Act. The district judge denied the plaintiffs immediate relief because the candidate that the plaintiffs supported was running unopposed for the seat, so omission from absentee ballots would not be injurious. A three-judge court found that section 5 preclearance was not required for the unusual circumstances.Topics: Getting on the ballot; section 5 preclearance; three-judge court; laches; matters for state courts.

Consequences of an Early PrimaryHayes v. Michigan Democratic Party (Robert J. Jonker, W.D. Mich. 1:07-cv-1237)
A party member filed a federal complaint challenging the state Democratic Party’s early primary election in violation of national party rules, claiming injury because her preferred candidate decided not to participate in the primary. It was over two weeks before the plaintiff asked for expedited consideration. Less than two weeks later, the court denied immediate relief so as not to interfere with an intraparty dispute.Topics: Party procedures; enjoining elections.

Punishment for Early Florida PrimariesNelson v. Dean (4:07-cv-427) and Ausman v. Browning (4:07-cv-519) (Robert L. Hinkle, N.D. Fla.)
On November 20, 2007, Florida voters filed a state court complaint challenging the state’s moving up the 2008 presidential primaries in violation of party rules. The case was removed to federal court on December 7, and a preliminary injunction motion was filed a week later. On January 3, 2008, the district court denied the plaintiffs preliminary injunctive relief because the consequences of the early primaries were still uncertain.Topics: Primary election; party procedures; removal; case assignment.

Holding an Election Before University Students Can RegisterMay v. City of Montgomery (Myron H. Thompson, M.D. Ala. 2:07-cv-738)
The federal action challenged the moving up of a local election, because it meant that students at a predominantly black university would not be in town in time to vote. Soon after the action was filed, the Justice Department precleared the change. The federal court declined jurisdiction over state claims.Topics: Student registration; section 2 discrimination; section 5 preclearance; three-judge court; matters for state courts; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

Preclearance for a Soil and Water Conservation DistrictEvans v. Bennett (Beverly B. Martin, N.D. Ga. 1:04-cv-2641)
Five days before a scheduled election for soil and water conservation district supervisors, two voters filed a federal complaint claiming that matters relating to the election had not received preclearance pursuant to section 5 of the Voting Rights Act. The election was canceled and preclearance was obtained three months later.Topics: Section 5 preclearance; enjoining elections.

Nullifying an Election Held Without PreclearanceLyde v. Glynn County Board of Elections (Anthony A. Alaimo, S.D. Ga. 2:04-cv-91)
Voters filed a federal complaint to enjoin an election for members of a county board of education until changes to the composition of the board were precleared pursuant to section 5 of the Voting Rights Act. The district judge allowed the election to proceed to avoid confusion because there was still time to enjoin the election’s results. For part of election day at one polling place, a sign erroneously informed voters that the school board primary had been enjoined, so the judge voided the election. The new composition was precleared in time for a substitute primary election in advance of the general election.Topics: Section 5 preclearance; enjoining elections; enjoining certification; primary election; three-judge court.

Section 5 Preclearance Not Required for Misapplication of Election LawLandry v. Kenner (Carl J. Barbier, E.D. La. 2:04-cv-85)
In a dispute over the date for a special election to replace a mayor elected to the parish council, voters filed a federal complaint alleging that the resigning mayor’s setting the election date was contrary to law and therefore a change in voting requiring preclearance pursuant to section 5 of the Voting Rights Act. The district judge concluded that actions in violation of law could not be seen as a change in the law, so he dismissed the section 5 case.Topics: Enjoining elections; section 5 preclearance; three-judge court; matters for state courts.

Preclearance of a Gubernatorial Recall ElectionSalazar v. Monterey County (5:03-cv-3584) and Oliverez v. California (5:03-cv-3658) (Jeremy Fogel, N.D. Cal.); Hernandez v. Merced County (1:03-cv-6147) and Gallegos v. California (1:03-cv-6157) (Oliver W. Wanger, E.D. Cal.)
When the state set a special election on whether to recall the governor, a ballot initiative was moved from a primary election to the earlier special election. Separate federal cases alleged that the recall and the early ballot initiative could not be held because they had not been precleared pursuant to section 5 of the Voting Rights Act as required for four of California’s counties. The state obtained preclearance just as a three-judge court met to review the case. The judge presiding over two similar cases in another of the state’s districts allowed the court presiding over the cases filed earlier to decide the issues.Topics: Section 5 preclearance; three-judge court; enjoining elections; news media; ballot measure.

Objections to Primary ProceduresJones v. Alabama (Richard W. Vollmer, Jr., S.D. Ala. 1:00-cv-442)
On May 11, 2000, a county commission candidate filed a federal pro se complaint challenging election procedures for a June 6 primary election. On June 1, the candidate moved for a temporary restraining order against the holding of the election. Service of the motion was not confirmed until late at night on Friday, June 2, the response was not docketed until Monday, and the judge was out sick on Monday and Tuesday, so the motion could not be considered until the election was over. In 2001, the judge granted the defendants’ motion to dismiss the case. The court of appeals affirmed the dismissal.Topics: Enjoining elections; primary election; pro se party.

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